Court Approves Water Rights Settlement in Washington State

United States and Lummi Indian Nation Resolve Dispute
with Multiple Parties and the State

WASHINGTON—A federal judge in Seattle approved a water rights settlement that
resolves a longstanding dispute regarding the regulation and use of groundwater
in northwest Washington State, the Justice Department announced today. Acting
Assistant Attorney General for the Environment and Natural Resources Division
Ronald J. Tenpas remarked that “This settlement brings the parties together,
reducing the possibility of future litigation and builds a framework for
cooperation between the tribe, state, and private parties.”

U.S. District Judge Thomas S. Zilly on November 20, 2007, issued a final order
and judgment approving a settlement negotiated between the United States and
Lummi Indian Nation and the Washington State Department of Ecology, Whatcom
County, Wash., and several water associations (Georgia Manor, Sunset, and
Harnden Island View), and various non-Lummi property owners. The settlement
concerns groundwater usage on the Lummi Peninsula, which is located on a portion
of the Lummi Reservation in western Washington.

Because the Peninsula is bounded on three sides by salt water, pumping of
groundwater must be restricted, and carefully monitored, to prevent salt water
from intruding into the aquifer from which the water supply is drawn. The
settlement apportions available groundwater on the Peninsula into two
allocations: the Lummi Nation Allocation and Department of Ecology Allocation.
Water subject to the Department of Ecology Allocation is to be regulated by the
Washington State Department of Ecology and water subject to the Lummi Nation
Allocation is to be regulated by the Lummi Nation. To foster cooperative
management of the aquifer, the Agreement imposes chloride standards on wells on
the Peninsula, and it sets forth uniform joint technical requirements, to be
enforced by both Lummi and Ecology, regarding the installation of meters,
construction of wells, water sampling methods, and related matters.

The Department of Ecology Allocation includes enough water to allow all
non-Lummi landowners who currently use water on the Peninsula to continue to use
water, plus it allows some water for future uses by non-Lummi landowners. The
Lummi Nation regulates all groundwater use on the Peninsula not subject to the
Ecology Allocation. Some of the water within the Lummi Allocation will be used
by non-Lummi landowners, however, as the Lummi Nation will continue to serve
water to various non-Lummi landowners who signed separate settlements or service
arrangements with the Lummi Nation in the past.

In approving the settlement, the federal court stated that “the Settlement
Agreement exhibits a balance rarely seen in litigation concerning a precious and
potentially scarce commodity; it preserves the resource rights of the Lummi
Nation, while guaranteeing existing users a sufficient amount of water for their
needs and making water available for a limited number of future users.”

As a result of the settlement, persons who want to use groundwater on the
Peninsula in the future must obtain advance approval from the appropriate
regulator, either the Department of Ecology or the Lummi Nation. Further, all
well owners on the Peninsula, both Lummi and non-Lummi, must install meters and
measure chloride levels in their wells and report the measured data to a water
master in an annual report. If chloride levels are too high, the Agreement
imposes restrictions on use of the wells.

Any disputes regarding implementation of the agreement will be resolved by a
court appointed water master, subject to an appeal to the federal district
court.